Toys R Us appeals $20M award in tot's slide death

May 5, 2013

Written by

Denise LaVoie

Associated Press

BOSTON — On a warm summer day in July 2006, Robin Aleo climbed to the top of a 6-foot inflatable pool slide and slid down head first. As she neared the bottom, the slide partially collapsed and Aleo slammed her head on the concrete pool deck, causing fatal injuries.

Five years later, a jury awarded Aleo's family more than $20 million, finding that the slide sold by Toys R Us did not comply with federal safety standards for swimming pool slides.

Toys R Us will go before the highest court in Massachusetts on Monday to ask that the award be overturned.

The national chain argues that the 1976 Consumer Product Safety Commission regulation cited by Aleo's family does not apply to inflatable in-ground pool slides, but only to rigid pool slides. Toys R Us also says the trial judge allowed lawyers for Aleo's family to inflame the jury by accusing Toys R Us of importing an "illegal" product when it had relied on a certification that the slide met all safety regulations.

Aleo, 29, of Louisville, Colo., was visiting relatives in Andover when she went down a "Banzai" pool slide. Her husband, Michael, and 15-month-old daughter were watching as her head hit the pool deck. She suffered a broken neck and died the next day at a Boston hospital.

A jury in Salem Superior Court awarded Aleo's estate $20.6 million in 2011, including $2.5 million in anticipated lost income from Aleo's career in advertising and marketing, $100,000 for pain and suffering before her death and $18 million in punitive damages. Toys R Us argues that the $18 million in punitive damages was "grossly excessive."

Lawyers for Aleo's husband say pool slides have been subject to a federal safety standard since 1976. The standard applies to all pool slides, no matter what they are made of, said Benjamin Zimmermann, a Boston attorney who represents Michael Aleo.

Toys R Us, however, says the standard was only meant to apply to rigid slides, not the flexible, inflatable slides that have become popular in recent years.

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"Inflatable slides did not exist (when the regulation was put in place)," Toys R Us lawyers argue in a legal brief filed in its appeal.

The company said the regulation "established performance standards that were designed for rigid slides and that could not be met by an air-filled slide made of fabric like the Inflatable Slide."

But Aleo's family says the regulation applies to all swimming pool slides "regardless of the materials of manufacture or structural characteristics."

The slide had an instruction manual and small warning label near the climbing footholds that said the weight limit was 200 pounds, but the safety standard required that slides should be able to support up to 350 pounds. Aleo weighed 148 pounds, according to testimony at the trial.

A spokeswoman for Toys R Us said the Wayne, N.J.-based company has a policy of not commenting on pending litigation.

In its appeal brief, Toys R Us said the trial judge refused to allow testimony that Aleo had misused the slide and that some witnesses said she had "jumped" or "dived" off the slide head first.

Zimmermann, however, said that witnesses who testified during the trial said Aleo had slid down the slide.

Michael Aleo's aunt and uncle purchased the slide from Toys R Us through Amazon.com. Toys R Us had imported the slides from China, where they were manufactured.

"It was never tested. It carried no required certification that it had been so tested," Zimmermann said.

"Under the federal Consumer Product Safety Commission standards and the Consumer Product Safety Act, products that come into the country without a certification that it's been tested to its applicable standards, the sale of that kind of product is unlawful," he said.

The commission announced in May 2012 that Toys R Us and Wal-Mart stores were recalling the slides, citing Aleo's death and injuries suffered by two other people, including a 24-year-old man from Springfield, Mo., who became a quadriplegic and a woman from Allentown, Pa., who fractured her neck.

The Aleo case has drawn the attention of the Toy Industry Association, a trade group whose nearly 600 members account for about 85% of the annual U.S. domestic toy market. The group filed a friend-of-the-court brief supporting Toys R Us in its position that the consumer safety regulation does not apply to inflatable pool slides.

The group says the safety commission never considered applying the rule to "constant air inflatable" slides because they didn't exist when the rule was written in the 1970s.

"In any event, the safety hazard that plaintiff alleged — injury due to the loss of air pressure — was not among the risks that the Commission considered," the group argues in its brief.